Citation Nr: 1335159
Decision Date: 11/01/13 Archive Date: 11/13/13
DOCKET NO. 06-00 055A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUE
Entitlement to service connection for bilateral pes planus with hallux valgus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
N. Sonia, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1983 to June 2004.
This case initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
In December 2009, the Board, in relevant part, remanded the issue of entitlement to service connection bilateral pes plenus, with hallux valgus. Following completion of the remand directives, the Board issued a decision in December 2012 in which it denied the Veteran's appeal. He appealed that decision to the U.S. Court of Appeals for Veterans Claims ("the Court").
In a February 2013 decision, the Court granted a Joint Motion for Remand (JMR) by the Veteran's representative and the VA General Counsel and remanded the claim back to the Board for further proceeding consistent with the February 2013 Order.
The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.
FINDINGS OF FACT
1. Service treatment records indicate that the Veteran had bilateral pes planus which was clinically identified at time of entry into service, and he is therefore not entitled to the presumption of soundness.
2. The evidence of record does not show that the Veteran's bilateral pes planus with hallux valgus was permanently aggravated during service beyond the natural progression of the disability.
CONCLUSION OF LAW
The criteria for service connection for bilateral pes planus with hallux valgus have not been met. 38 U.S.C.A. §§ 1110 , 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303 , 3.304, 3.306 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a)(2013). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
The law provides that a Veteran who served for six months or more during peacetime after December 31, 1946, shall be presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1132.
In the case, the Veteran's June 1983 enlistment examination noted asymptomatic pes planus.
Because a preexisting medical condition has been noted upon entry into service, the presumption of soundness is not for application. 38 C.F.R. § 3.304(b).
Where, as here, a Veteran is otherwise not presumed sound on entrance, 38 U.S.C.A. § 1153 applies, meaning that for service connection to be warranted, it must be shown that a preexisting injury or disease was aggravated by a veteran's active military, naval, or air service. Aggravation will be found where there is an increase in disability during such service (presumption of aggravation), unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153.
To trigger the presumption of aggravation, the Veteran (i.e. the evidence of record) must simply show that there was an increase in disability during his time in service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the Veteran meets that showing, the burden then shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. See Wagner, 370 F.3d at 1096.
However, "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability).
In this case, the Veteran is seeking service connection for bilateral pes planus with hallux valgus. Given the conclusion that he was not in sound condition with respect to his feet at enlistment, the Board must consider whether there was an increase in disability during his time in service, and, if so, whether his bilateral pes planus with hallux valgus was aggravated during his active service.
Pursuant to the February 2013 JMR, the Court held that the Board erred by finding that the Veteran failed to demonstrate that his preexisting bilateral pes planus increased in severity during his military service. Moreover, the Court held that the June 2011 addendum opinion relied upon in the December 2012 decision, which will be discussed in more detail below, was inadequate.
Specifically, the Court found the addendum opinion lacked a sufficient rationale as to why the documented increase in symptoms shown at the Veteran's January 2004 separation and March 2004 VA examination either detailed the natural progress of the disease or did not demonstrate a permanent exacerbation of the Veteran's pes planus.
Based on these findings, the Board was advised to discuss, without reliance on the June 2011 addendum opinion, whether the government has shown clear and unmistakable evidence that rebuts the presumption of aggravation.
As noted above, the Veteran served on active duty from October 1983 to June 2004.
As previously discussed, the Veteran's June 1983 enlistment examination notes asymptomatic pes planus. However, the Veteran himself denied foot trouble on his June 1983 report of medical history. Subsequently, in an August 1985 examination report, the Veteran was noted to have asymptomatic pes planus.
Next, on a December 1989 report of medical history, the Veteran again denied foot trouble, providing evidence against his own claim.
On a January 1989 physical examination report, the medical examiner found the Veteran's feet to be normal. The medical examiner also noted there were no major medical problems since the Veteran's last examination, providing more evidence against this claim.
An April 1995 examination report again noted the Veteran's feet were normal, and the Veteran again denied foot trouble in the April 1995 report of medical history. Once again the Veteran did not indicate foot trouble in a March 2001 report of medical history, and the medical examiner also found his feet to be normal at that time
Therefore, the service treatment records (prior to the Veteran's separation examination) repeatedly indicate that the medical examiners did not find feet abnormalities, to include symptomatic pes planus, nor did the Veteran himself indicate any problems with his feet. Such indications provide highly probative evidence against the Veteran's claim.
At separation, however, the Veteran indicated that he had experienced foot trouble. The Veteran explained, "Arch has flatten [sic] over the years, short periods of standing cause pain in feet." Upon examination, the medical examiner noted a history of flat feet and that the Veteran took NSAIDS for the pain but there was no orthotics or surgeries. The examiner recommended follow-up treatment. The January 2004 examination report found pes planus, which was moderate and symptomatic, and noted tender soles.
At his March 2004 VA pre-discharge examination, the Veteran reported having had flat feet for the past three years. He did not have surgery. The Veteran also reported pain, weakness, stiffness, and fatigue when standing or walking. The Veteran indicated that he had a hard time bearing weight on his feet for long periods of time; this included standing, walking, or climbing stairs. The Veteran indicated he lost one day a month from work because of his foot disability.
Upon examination, the medical examiner diagnosed bilateral pes planus with mild hallux valgus. The Veteran reported using shoe devices but indicated that he had left them at home.
Subsequently, the Veteran was afforded a VA examination in April 2008. The examiner noted the Veteran's report of pain in his foot, "dating back a couple of years." The examiner diagnosed pes planus bunion deformities and hammertoe deformities of hereditary origin. However, the examiner also stated such deformities were not caused by military service nor were they advanced by military service beyond normal life progression, providing some evidence against this claim.
A December 2009 Board decision remanded the Veteran's claim for further development, specifically, to address the examiner's rationale contained in the April 2008 examination report. The examiner was asked to address the finding of pes planus with tender soles at the Veteran's separation examination in January 2004 as well as his report of flare-ups of pain with standing for short periods of time. The Board specifically noted that the Veteran's pes planus was asymptomatic at entry and throughout service, but that he was shown to have pes planus with painful soles at his separation examination. Furthermore, the Veteran reported having flare-ups of pain at the time of separation. Thus, on remand, the Board sought an opinion as to whether the finding of tender soles and the complaints of flare-ups of pain at separation represented a permanent increase in the Veteran's pes planus disability. If there was a permanent increase in the Veteran's pes planus disability, the Board requested an opinion as to whether there was clear and unmistakable evidence that the permanent increase was due to the natural progression of the disability. The Board noted that temporary or intermittent flare-ups during service of a pre-existing injury or disease were not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, had worsened.
In compliance with the remand directives, the Veteran was afforded another VA examination in March 2010. The examiner reviewed the claims file and identified the Veteran's complaint of pain in his feet. The examiner also noted that the Veteran used shoe inserts. Upon examination, the examiner diagnosed bilateral pes planus with mild hallux valgus on the right.
The examiner rendered the following opinion: "if the Veteran had tender soles on his feet, especially in the metatarsal head region where he now had it, in January 2004, that it is possible that this could have been due to a progression of his disease of his pes planus disease while he was in the military service. It is well known that this can be a progressive deformity that goes on over time. It is definitely possible that any increase in severity of the pes planus deformity and resultant transfer metatarsalgia and bunion formation could be secondary to this." The examiner then concluded that he could not resolve the issue as to whether or not the Veteran's report of flare-ups and tender soles on his January 2004 separation examination was a permanent increase in his pes planus disability without resorting to mere speculation, noting that he had reviewed the claims folder but could not find the January 2004 separation examination.
Acting on behalf of the RO, the AMC, in April 2010 requested clarification with regard to the March 2010 opinion. The AMC indicated that the VA physician should be asked if it was possible that the physical demands of twenty years of military service could have caused an unnatural progression of the disability related to bilateral pes planus that might otherwise not be present if he had not spent twenty years in the military and instead worked in a job that was less physically demanding.
In a March 2011 addendum report, another VA physician indicated that he had reviewed the Veteran's claims folder as well as the report prepared by the March 2010 VA examiner. He noted that the Veteran reportedly had an enlistment diagnosis of pes planus. In terms of offering an opinion as to whether or not it was possible that the physical demands from twenty years of military service could have caused an unnatural progression of disability related to the Veteran's pes planus, the examiner concluded, "I feel like this is feasible, however there is certainly no way to be completely accurate regarding that statement. It is no secret that increasing physical activity would exacerbate normal wear and tear on anyone's feet."
The AMC then asked for clarification of the March 2011addendum report in order to address the unanswered question of whether it was likely or unlikely that the finding of tender soles at the time of the January 2004 service separation examination and the Veteran's reports of flare-ups of pain due to standing for short periods of time on the associated report of medical history represented a permanent increase in the Veteran's pes planus disability.
In a June 2011 addendum, the examiner (who had also prepared the March 2011 addendum), reviewed the March 2010 examination report as well as the previous addendum. He concluded that tender soles could be caused by any number of entities and that it was unlikely to have permanently exacerbated his pes planus condition.
In a July 2011 addendum, another VA physician indicated that from a review of the record, the examiner who prepared the March and June 2011 addendums had reviewed the claims folder.
Although the June 2011 addendum provides evidence against the Veteran's claim, the JMR requests adjudication of the claim without relying on the June 2011 addendum(s). As noted in the JMR, the June 2011 addendum does not explicitly answer whether the Veteran's military service, spanning over twenty years, aggravated his preexisting pes planus beyond the natural progression of the disability. The JMR also indicated that the June 2011 addendum opinion does not meet the clear and unmistakable evidence standard as required by 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(a), (b), notwithstanding the extensive efforts of the VA to obtain an adequate medical opinion, as noted in the record above.
For this reason, the Board does not assign probative value to the June 2011 addendum opinion.
In August 2013, another medical opinion was obtained; the examiner was asked to base any opinions rendered on a review of the clinical records and the assertions of the Veteran. In that opinion, the examiner indicated that there were was no indication that the Veteran's pes planus or hallux valgus was symptomatic in service. The examiner indicated, however, that at the completion of service, there was a finding of pes planus. The examiner concluded that the Veteran's pes planus and hallux valgus were not permanently aggravated while in service and further opined that the "Veteran was diagnosed with pes planus and hallux valgus after completion of service. There is no record of any event(s) (injury, surgery, loss of function, chronicity of treatments, etc.) that would have advanced the progression of these hereditary deformities beyond normal life progression."
In September 2013, the Veteran submitted a response to the August 2013 opinion. He stated that there was mention of his foot disability in service, specifically at the separation examination. Moreover, the Veteran contended that he received treatment for his disability when, at that same separation examination, he was advised to obtain orthotics and receive follow-up treatment upon retirement.
In this regard, the Board notes that the August 2013 opinion recognized the references to foot problems in the separation examination, which occurred in January 2004. The opinion clearly stated that, upon completion of service, there was a finding of pes planus. With regard to treatment, the Board confirms that the Veteran was advised to seek treatment in January 2004. However, a recommendation to seek treatment is not the same as actually receiving treatment for the disability. Thus, the Board finds that the August 2013 opinion is adequate; it is grounded in the evidence of record and supported by a complete rationale. It also provides high probative evidence against the Veteran's claim, along with many of the Veteran's prior statements (as cited above) that do not indicate a foot problem during service.
As a result, the Board finds that the August 2013 opinion probative on the issues of whether the Veteran's foot disability was permanently aggravated by service and whether the disability advanced beyond the natural progression of the disability. In this regard, the opinion provides highly probative evidence against the Veteran's claim.
Therefore, clear and unmistakable evidence shows that the Veteran's pes planus with hallux valgus did not worsen during his military service beyond the natural progress of the disability. Although the January 2004 examination indicated that the Veteran's pes planus, which had been described as asymptomatic at entry, was symptomatic at separation, service treatment records repeatedly noted normal clinical evaluations of the feet as well as repeated denials of foot trouble by the Veteran himself. Such facts provide highly probative evidence against this claim that outweigh the Veteran's current recollection.
Moreover, several VA examinations provide more evidence against this claim. The April 2008 examination report indicated the Veteran's foot disability was not advanced by military service beyond natural progression. The Board notes that the April 2008 examination did not provide a thorough rationale for its conclusion; therefore, the Board assigns that examination minimal probative value. Next, the March 2010 and March 2011 examinations couched their conclusions in somewhat equivocal language, indicating it was possible/feasible that the Veteran's the Veteran's conditions at the time of separation demonstrated an increase in severity beyond natural progression. Therefore, these examinations have decreased probative value.
Lastly, the August 2013 opinion concluded that the Veteran's foot disability was not permanently aggravated during service. As previously explained, the Board finds the opinion to be highly probative on the issue of whether the Veteran's disability was permanently worsened by service. Even taking into consideration the finding of symptomatic flat feet upon separation, as well as any in-service events, which would therefore include any activities during the Veteran's more than twenty years of service, the examiner found that the Veteran's disability was not permanently aggravated while in service. The medical evidence in this case repeatedly provides highly probative, clear and unmistakable evidence against the Veteran's claim.
The Board acknowledges that the Veteran may have may have experienced foot symptoms in service, given the physical nature of military service. However, even if it is accepted that the Veteran experienced symptoms, symptoms alone are insufficient to establish service connection as temporary flare-ups alone are not considered to be permanent worsening. See Hunt, 1 Vet. App. at 297; see also Davis, 276 F.3d at 1346 .
Moreover, the Veteran is competent to describe symptoms he experienced, but he lacks the medical training and expertise to provide a complex medical opinion, such as determining that his foot disability was permanently worsened during service beyond the natural progression of the disease. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Nevertheless, the Board did seek a medical opinion as to the question of whether the Veteran's pre-existing foot disability was permanently worsened by his military service, and the Board remanded the Veteran's claim on multiple occasions to ensure that the opinion which was received was adequate for rating purposes. Unfortunately, as described, the August 2013 opinion, and other evidence of record, simply does not support the Veteran's contentions, and provides significant and highly probative evidence against the claim.
The Board emphasizes that the statutory language indicates that a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Here, the Board acknowledges that the Veteran's pes planus were asymptomatic at entry and symptomatic at separation. However, simply stated, becoming symptomatic does not necessarily show that the Veteran's pes planus worsened beyond the natural progress of the disease. Here, the preponderance of the evidence is against such a finding based on multiple medical evaluations and opinions.
Accordingly, the claim for entitlement to service connection for pes plenus with hallux valgus must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed below, VA has fulfilled its duties under the VCAA.
When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
For service-connection claims, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In the present appeal, the VCAA duty to notify was satisfied by a February 2004 letter that informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. Thus, the Board notes that, in this case, the Veteran was not provided with notice as to the type of evidence necessary to establish a disability rating and effective date. However, the Veteran received notice in June 2006 addressing both of these issues. The Board finds that any defect concerning the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of the claim and ample time to respond to VA notices. See Mayfield, 444 F.3d at 1328. Additionally, the Veteran's claim was readjudicated following completion of the notice requirements and the Veteran has not alleged that he has been prejudiced in any way by any notice error.
Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the Veteran and his representative, VA treatment records, private medical records, and several VA examinations and addendum opinions. As described above, the April 2008 examination did not provide a thorough rationale for its conclusions, and the Board therefore assigned the examination little probative weight. Collectively, the March 2010 and March 2011 addendum were adequate because the examiner reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided a sufficient analysis to support the conclusions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). However, as described above, the equivocal language within the examinations lowered their probative value. Similarly, the June 2011 addendum was not provided probative value because of deficiencies in its rationale. Finally, the August 2013 opinion is adequate because of its thorough review of the Veteran's medical history, identification of pertinent examination findings, and supportive analysis of the opinions expressed. Id.
The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
The appeal is denied.
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs